May 27, 2021
The following commentary is based on the draft Building Safety Bill. It is therefore subject to change and provided for information only.
The Building Safety Bill will introduce a new role of the Accountable Person. They will be the duty holder for occupied higher-risk buildings. Each occupied higher-risk building must have an identified Accountable Person.
The Accountable Person will various duties under the legislation, but perhaps the most important is the duty to assess the safety risks of the higher-risk building on an ongoing basis and take all reasonable steps to prevent a major incident occurring, and reduce the severity of any such incident.
The building safety risks the Accountable Person must take into consideration under this duty are those that pose a risk to the safety of persons in or about a higher-risk building arising from fire and structural failure. Whilst the legislation allows for the scope to be expanded in future, the initial focus of the duty is intended to address safety risks that may result in major and rapid onset events that pose the greatest risk to life.
What this means in practice for the Accountable Person is that risks arising from many different aspects of the building will need to be actively managed and considerable areas of building systems and procedures must be in place and compliant to meet the requirements of this duty.
The Accountable Person for a building can be an individual, organisation or multiple individuals and organisations.
You or your organisation will be an Accountable Person for a higher-risk building if:
The Accountable Person may therefore be the freeholder, a housing association, management company, commonhold association, Right to Manage Company or a combination of them.
Where higher-risk buildings are managed by resident management organisations, the directors of these companies, who may well be residents, may find themselves as Accountable Persons for their own building.
In the draft legislation, the Accountable Person has a duty to take all reasonable steps to prevent a major incident occurring due to a building safety risk materialising and secondly, to reduce the severity of any such incident.
Major incident is defined in the draft Bill as one that results in a significant number of deaths or serious injury to a significant number of people. In pre-legislative scrutiny by the Housing, Communities and Local Government Commons Select Committee, it was recommended this definition of major incident be amended to include incidents that might reasonably foreseeably cause death or serious injury. This would be a significant amendment and increase the range of potential incidents that the Accountable Person must take all reasonable steps to prevent.
For this reason and to manage risk, Accountable Persons should take a comprehensive and holistic approach to ensure compliance and building safety, rather than overly focus their attention on a narrow range of aspects.
In summary, the Accountable Person will have the following primary duties:
In pre-legislative scrutiny by the Housing, Communities and Local Government Commons Select Committee, it was recommended that Building Safety Managers be required to inform Accountable Persons of their duties under the Bill. Having a qualified and knowledgeable Building Safety Manager would therefore be a recommended early step for any Accountable Person.
If an Accountable Person fails to comply with their duties under the Bill, they will be committing a criminal offence. The offences carry a maximum penalty of an unlimited fine and/or up to two years imprisonment.
The legislation as it is currently drafted extends the duty of the Accountable Person to manage fire and structural building safety risks that may result in a major incident. This means that obvious areas of building management and infrastructure must be compliant and effectively managed, such as but not limited to:
However, many other aspects of building infrastructure, if not managed correctly to ensure compliance could also contribute to the risk of fire. During the pre-legislative scrutiny of the Bill by the Housing, Communities and Local Government Commons Select Committee, they concluded that issues arising from for example, electrical failures could result in fire and therefore they’re likely already caught in the scope of the Bill.
This means a wider range of building systems and management, where failures or issues could lead to fire need to be considered, such as:
Carrying out a suitable and sufficient risk assessment as required by the Bill to develop a Building Safety Case, using a qualified multi-disciplinary team will be essential to ensure that all risks are correctly identified and a holistic and comprehensive compliance management system developed to manage them.